Citation Nr: 0105394
Decision Date: 02/22/01 Archive Date: 03/02/01
DOCKET NO. 99-10 401 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUES
1. Entitlement to service connection for an eye disorder,
claimed as blurred vision and as secondary to service-
connected disabilities.
2. Entitlement to an evaluation in excess of 40 percent for
degenerative joint disease, L4-5, with right-sided
radiculopathy to the lower extremity.
3. Entitlement to an evaluation in excess of 20 percent for
residuals of a status post meniscectomy and arthrotomy of the
right knee for the period from February 14, 1990 to April 30,
1997.
4. Entitlement to an evaluation in excess of 30 percent for
residuals of a status post meniscectomy and arthrotomy of the
right knee for the period from April 30, 1997.
5. Entitlement to a total disability evaluation based on
individual unemployability due to service-connected
disability.
6. Entitlement to specially adapted housing.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. M. Fogarty, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1958 to
September 1961.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of rating decisions from the Department of Veterans
Affairs (VA) Regional Office (RO), in Los Angeles,
California.
In a March 1992 decision, the Board, in pertinent part,
remanded the issue of entitlement to an evaluation in excess
of 10 percent for a right knee disorder to the RO for
additional development of the record. A review of the record
reflects that the issue was not returned to the Board for
appellate consideration prior to this decision.
The Board notes that in her December 2000 hearing before a
Member of the Board, the veteran and her representative
raised the issues of entitlement to service connection for
urinary incontinence, claimed as secondary to her service-
connected back condition, and entitlement to an increased
evaluation for a service-connected left knee disability.
(Transcript, pages 3 and 4). These matters are referred to
the RO for appropriate action.
The issues of entitlement to service connection for an eye
disorder, claimed as blurred vision and as secondary to
service-connected disabilities, and entitlement to specially
adapted housing will be addressed in the remand portion of
this decision.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran's appeal.
2. The veteran's service-connected back disorder is
manifested by pain, marked limitation of motion, severely
restricted mobility, and degenerative disc disease with right
lower extremity neurological dysfunction; without objective
evidence of spasm, weakness, fatigue, or incoordination.
3. In regard to the period from February 14, 1990 to April
30, 1997, the medical evidence of record demonstrates no more
than moderate subluxation or lateral instability of the right
knee.
4. In regard to the period from April 30, 1997, residuals of
a status post meniscectomy and arthrotomy of the right knee
are manifested by severe pain and lateral instability with
loss of active motion.
5. Objective medical evidence of record demonstrates
arthritis of the right knee with painful motion.
6. The veteran's service-connected disabilities are of
sufficient severity so as to prevent her from engaging in
substantially gainful employment consistent with her
education and occupational experience.
CONCLUSIONS OF LAW
1. The criteria for a 60 percent evaluation for degenerative
joint disease, L4-5, with right-sided radiculopathy to the
lower extremity have been met. 38 U.S.C.A. § 1155 (West
1991); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5293
(2000).
2. The criteria for an evaluation in excess of 20 percent
for residuals of a status post meniscectomy and arthrotomy of
the right knee for the period from February 14, 1990 to April
30, 1997 have not been met. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. § 4.71a, Diagnostic Code 5257, 5260, 5261 (2000).
3. The criteria for an evaluation in excess of 30 percent
for residuals of a status post meniscectomy and arthrotomy of
the right knee for the period from April 30, 1997 have not
been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a,
Diagnostic Code 5257 (2000).
4. The criteria for a 10 percent evaluation for arthritis
due to residuals of a status post meniscectomy and arthrotomy
of the right knee have been met. 38 U.S.C.A. § 1155 (West
1991); 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2000).
5. The criteria for entitlement to a total disability rating
for compensation purposes based upon individual
unemployability due to service-connected disabilities have
been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
§§ 3.340, 3.341, 4.15, 4.16, 4.18 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Degenerative joint disease, L4-5, with right-sided
radiculopathy to the lower extremity
Factual Background
In a December 1993 rating decision, the RO granted
entitlement to service connection for a back condition, as
secondary to a service-connected right knee condition,
evaluated as 10 percent disabling, effective from February
14, 1990.
In April 1997, the veteran sought re-evaluation of her
service-connected disabilities.
Upon VA examination dated in June 1997, the examiner noted
severe mechanical low back pain with marked limitation of
motion. Flexion of the lumbosacral spine was noted as to 10
degrees. A diagnosis of degenerative disc disease and
herniated disc at L4-L5 with low back pain was noted.
A magnetic resonance imaging report of the lumbar spine dated
in December 1996 reflects an impression of degenerative
changes at L4-5 without spinal stenosis, herniated disc, or
neural foramina narrowing. A December 1996 radiology report
of the lumbosacral spine revealed moderate to advanced
degenerative and discogenic changes involving L4-5
characterized by spur formation with intervertebral disc
space narrowing.
Upon VA examination dated in October 1997, it was noted the
veteran had chronic back pain and walked on crutches with a
stooped posture. It was also noted that she would drag her
right foot during walking. She did not demonstrate any
swelling of the paraspinal muscles of the back. There was
tenderness over the 3rd and 4th lumbar vertebra to percussion.
The veteran was noted as severely restricted in her mobility.
It was also noted that the veteran had to use crutches for
every movement she made. Forward flexion was noted as
markedly limited to 25 degrees. Left lateral flexion and
right lateral flexion were to 15 degrees. Backward extension
was noted as to 5 degrees and described as virtually
impossible and probably painful. The examiner noted the
veteran had severe pain during these movements. Right and
left rotation was noted as not possible with crutches. The
examiner noted that it was difficult to examine the veteran's
back because she was unable to stand without the use of
crutches or holding onto things. A diagnosis of degenerative
joint disease of L4-5, herniated disc disease was noted. The
examiner opined that the veteran was severely crippled and
unable to have any active motion in her right lower
extremity. He also opined that she had severe pain over the
lumbar back and the movement of the spine was markedly
limited with a stooped posture.
In a December 1997 rating decision, the RO determined that a
20 percent evaluation was warranted for degenerative joint
disease, L4-5.
Relevant VA treatment records dated from 1997 to 1999 reflect
complaints of chronic low back pain. It was noted in
September 1997 that the veteran received a motorized scooter
from a VA medical center. A May 1999 radiology report of the
lumbosacral spine reflects impressions of osteoporosis,
eburnation at the midportion of both sacroiliac joints,
probably on a degenerative basis, and degenerative and
discogenic changes involving L4-5 and vascular calcification
within the abdominal aorta, with no evidence of osteoblastic
or osteolytic bone disease.
A private medical evaluation dated in January 1998 reflects
the back was without spasm. A relevant assessment of
osteoarthritis, arthralgia, muscle weakness and difficulty
walking was noted. It was also noted that the veteran walked
with two straight canes with arm supports.
A May 1999 private rheumatologic evaluation revealed no soft
tissue swelling in any of the peripheral joints. An
impression of generalized musculoskeletal pain, bilateral
osteoarthritis of the knee, and neurological dysfunction of
the right lower extremity was noted. The examiner
recommended a complete neurological examination.
Upon VA examination dated in October 1999, it was noted the
veteran was mobile with a scooter and used crutches with
assistance for ambulation. Examination of the lumbar spine
revealed no evidence of muscle spasm, loss of lumbar
lordosis, thoracic kyphosis, or cervical lordosis. There was
no weakness or tenderness noted. Active flexion was to 40
degrees with pain. Extension was to 5 degrees with pain,
left and right lateral flexion was to 15 degrees with pain,
and right and left rotation was to 30 degrees with pain.
Range of motion was noted as affected by pain. The examiner
noted there was no weakness, fatigue, or incoordination. It
was also noted that these ranges of motion were performed
with the aid of crutches and assistance. A relevant
diagnosis of degenerative disc disease of the lumbar spine
was noted.
A subsequent VA orthopedic examination dated in October 1999
reflects complaint of pain to palpation over the dorsal
spinous processes and the paraspinal muscles on each side.
There was tenderness in the lumbar area over the spinous
processes and paraspinal muscles, more on the right than the
left. Straight leg raising was noted as to 90 degrees on
both the right and left. A relevant diagnosis of lumbosacral
degenerative disc disease, L4-L5, with right lower extremity
neurological dysfunction and widespread weakness was noted.
The examiner opined that there was evidence of limited
motion, tenderness, and obvious findings of degenerative disc
disease by radiographic examination. The examiner further
opined there was no aggravation or additional problem in
regard to weakness, fatigue, incoordination, or other ongoing
problems.
In an April 2000 rating decision, the RO determined that a 40
percent evaluation was warranted for the veteran's service-
connected back disability, effective from April 30, 1997.
At her December 2000 hearing before a Member of the Board,
the veteran testified that she wore a back corset for support
and that she had a lot of muscle spasm in her back.
Analysis
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Rating Schedule),
38 C.F.R. § Part 4 (2000). The percentage ratings contained
in the Rating Schedule represent, as far as can be
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1
(2000). Separate diagnostic codes identify the various
disabilities.
In determining the disability evaluation, VA has a duty to
acknowledge and consider all regulations which are
potentially applicable based upon the assertions and issues
raised in the record and to explain the reasons and bases for
its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589
(1991). These regulations include 38 C.F.R. §§ 4.1 and 4.2
(2000) which require the evaluation of the complete medical
history of the claimant's condition. These regulations
operate to protect claimants against adverse decisions based
on a single, incomplete, or inaccurate report, and to enable
VA to make a more precise evaluation of the level of the
disability and of any changes in the condition. Schafrath, 1
Vet. App. at 593-94 (1991).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, the regulations do not give past medical
reports precedence over current findings. See Francisco v.
Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. It is essential that the examination on which
ratings are based adequately portray the anatomical damage,
and the functional loss, with respect to all of these
elements. The functional loss may be due to pain, supported
by adequate pathology and evidenced by the visible behavior
of the claimant undertaking the motion. 38 C.F.R. § 4.40
(2000).
Weakness is as important as limitation of motion, and a part
which becomes painful on use must be regarded as seriously
disabled. A little-used part of the musculoskeletal system
may be expected to show evidence of disuse, either through
atrophy, the condition of the skin, absence of normal
callosity or the like. See 38 C.F.R. § 4.40. The provisions
of 38 C.F.R. §§ 4.45 and 4.59 (2000) contemplate inquiry into
whether there is crepitation, limitation of motion, weakness,
excess fatigability, incoordination, impaired ability to
execute skilled movements smoothly, pain on movement,
swelling, deformity, or atrophy of disuse. Instability of
station, disturbance of locomotion, and interference with
sitting, standing, and weight-bearing are also related
considerations. It is the intention of the rating schedule
to recognize actually painful, unstable, or mal-aligned
joints, due to healed injury, as at least minimally
compensable. See 38 C.F.R. §§ 4.45 and 4.59.
Intervertebral disc syndrome is rated pursuant to 38 C.F.R.
§ 4.71a, Diagnostic Code 5293, which provides that a 20
percent evaluation is warranted for moderate intervertebral
disc syndrome with recurring attacks. A 40 percent
evaluation is warranted for severe intervertebral disc
syndrome with recurring attacks and intermittent relief.
Pronounced intervertebral disc syndrome with persistent
symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent
ankle jerk, or other neurological findings appropriate to the
site of the diseased disc with little intermittent relief
warrants a 60 percent evaluation. See 38 C.F.R. § 4.71a,
Diagnostic Code 5293.
Lumbosacral strain is rated pursuant to 38 C.F.R. § 4.71a,
Diagnostic Code 5295 (2000). A 10 percent disability
evaluation is warranted for lumbosacral strain with
characteristic pain on motion. Lumbosacral strain with
muscle spasm on extreme forward bending with loss of lateral
spine motion, unilateral, in a standing position warrants a
20 percent disability evaluation. A 40 percent evaluation,
the highest allowable under this diagnostic code,
contemplates severe lumbosacral strain with listing of the
whole spine to the opposite side, positive Goldthwaite's
sign, marked limitation of forward bending in the standing
position, loss of lateral motion with osteoarthritic changes
or narrowing or irregularity of joint space, or some of the
above with abnormal mobility of forced motion. See 38 C.F.R.
§ 4.71a, Diagnostic Code 5295.
Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2000), a
10 percent disability evaluation contemplates slight
limitation of motion of the lumbar spine. A 20 percent
disability evaluation is warranted for moderate limitation of
motion of the lumbar spine. Severe limitation of motion of
the lumbar spine warrants a 40 percent disability evaluation.
This diagnostic code does not provide for an evaluation in
excess of 40 percent.
When there is a question as to which of two evaluations
should be applied to a disability, the higher evaluation will
be assigned if the disability picture more nearly
approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7. Any reasonable doubt regarding the degree of
disability will be resolved in favor of the claimant.
38 C.F.R. § 4.3.
As previously noted, the veteran's service-connected
degenerative joint disease of L4-5, with right-sided
radiculopathy is currently evaluated as 40 percent disabling
pursuant to Diagnostic Codes 5292 and 5293. As diagnostic
Codes 5292 and 5295 do not provide for an evaluation in
excess of 40 percent, contemplation of those diagnostic codes
is not warranted in the present case.
The medical evidence of record indicates that the veteran's
service-connected back condition is manifested by pain,
marked limitation of motion, and degenerative disc disease
with right lower extremity neurological dysfunction; without
objective evidence of spasm, weakness, fatigue, or
incoordination. The Board concludes that this evidence more
nearly approximates to a 60 percent evaluation in that it
indicates pronounced intervertebral disc syndrome with
persistent symptoms compatible with sciatic neuropathy and
appropriate neurological findings with little intermittent
relief. Thus, the Board concludes that a 60 percent
evaluation is warranted for degenerative joint disease of L4-
5 with right-sided radiculopathy.
The Board notes that the United States Court of Appeals for
Veterans Claims (known as the United States Court of Veterans
Appeals prior to March 1, 1999) (hereinafter, "the Court"),
in DeLuca v. Brown, 8 Vet. App. 202 (1995), held that where
evaluation is based on limitation of motion, the question of
whether pain and functional loss are additionally disabling
must be considered. See 38 C.F.R. §§ 4.40, 4.45, 4.59. The
Court has, however, held that where a diagnostic code is not
predicated on a limited range of motion alone, the provisions
of 38 C.F.R. §§ 4.40 and 4.45, with respect to pain, do not
apply. See Johnson v. Brown, 9 Vet. App. 7 (1996). Because
the veteran's disability is rated under Diagnostic Code 5293,
a code which is not predicated solely on loss of range of
motion, 38 C.F.R. §§ 4.40 and 4.45 regarding functional loss
due to pain do not apply. See Johnson v. Brown, 9 Vet. App.
7 (1996). Furthermore, in light of the October 1999 VA
evaluations finding no weakness, fatigue, or incoordination,
the Board concludes an additional evaluation pursuant to
38 C.F.R. §§ 4.40, 4.45, 4.59 is not warranted.
II. Increased Evaluation of Right Knee
Factual Background
In a December 1961 rating decision, the RO granted
entitlement to a scar, postoperative right knee arthrotomy,
evaluated as noncompensable. In a December 1983 rating
decision, the RO determined that a 10 percent evaluation was
warranted for the veteran's service-connected right knee. In
a January 1985 decision, the Board determined that an
evaluation in excess of 10 percent was not warranted for the
veteran's service-connected right knee. In a March 1988
decision, the Board again denied entitlement to an evaluation
in excess of 10 percent for the veteran's service-connected
right knee.
A private magnetic resonance imaging report of the right knee
dated in December 1989 reflects an impression of surgical
absence or severe degenerative thinning of the right lateral
meniscus, no medial meniscal tears, and small right knee
joint effusion.
A January 1990 private clinical record reflects the veteran
had lateral joint line and subpatellar tenderness with no
effusion or ligamentous laxity in the right knee. She had
full extension and 130 degrees of flexion in the right knee.
Slight right thigh atrophy was noted. It was also noted
there was no Lachman sign and no drawer sign, but equivocal
lateral pivot shift. In January 1990, the veteran underwent
arthroscopy and debridement of the right knee. Post-
operative diagnoses of chondromalacia of the right patella,
degenerative joint disease of the right knee (lateral
compartment), status post right lateral meniscectomy (open),
and small anterior horn tear of the right medial meniscus
were noted.
In February 1990, the veteran sought entitlement to an
increased evaluation of her service-connected right knee
disability.
A private medical prescription dated in March 1990, reflects
that a lightweight long leg brace with hinged knee without
drop locks was prescribed.
Upon VA examination dated in July 1990, the veteran
complained of severe knee pain. The examiner noted that both
knees did not exhibit any instability. There was tenderness
to palpation of both knees over the entire area. Several
small scars about the right knee were also noted. The
veteran could not extend her right knee against gravity. All
active movements on the right were noted as absent. Relevant
diagnoses of status post injury to the right knee, lateral
meniscectomy of the right knee, status post surgical
debridement of the right knee, degenerative arthritis of the
right knee, and small anterior horn tear of right medial
meniscus were noted.
In March 1992, the Board remanded the issue of entitlement to
an evaluation in excess of 10 percent for a right knee
disorder to the RO for additional development.
Upon VA examination dated in April 1992, the examiner noted
trace effusion, good patella mobility, and healed lateral
arthrotomy incision. It was noted that x-ray examination
revealed mild to moderate degenerative changes in the lateral
compartment. An assessment of mild to moderate degenerative
changes primarily involving the lateral compartment of the
right knee was noted.
A private examination report dated in August 1992 reflects a
notation of weakness and paralysis of the legs upon
neurological motor sensory. The right side was noted as
sensitive to pain. External rotation was noted as to 12 with
pain on the right. A diagnosis of osteoarthritis of the
knees was noted.
Upon VA examination dated in February 1993, it was noted that
straight leg raising was not possible on the right. The
right knee was noted as appearing larger than the left.
There was no evidence of acute inflammation of any of the
joints or other evidence of acute arthritis. The examiner
noted osteoarthritis of the right knee with muscle atrophy.
Upon VA examination dated in September 1993, radiological
examination revealed moderate degenerative arthritis mainly
in the medial compartment. The examiner noted atrophy of the
gastrocnemius muscle on both sides, especially the right.
This was noted as due to a lack of use. Extension of the
knees was noted as to 180 degrees on both sides and flexion
was noted as to 145 degrees on both sides. There was lateral
collateral ligament deficiency. The right knee could be
pushed into a varus of 25 degrees. The cruciate ligaments
were intact. McMurray's sign was negative on both sides and
straight leg raising was negative on both sides. The patella
and Achilles tendon reflexes were present on both sides. It
was noted that x-rays showed osteoarthritic changes of the
right knee.
In a December 1993 rating decision, the RO granted
entitlement to an evaluation in excess of 20 percent for the
veteran's service-connected right knee condition, effective
from February 14, 1990.
Upon VA examination dated in June 1997, it was noted that
there had been a generalized progression of osteoarthritis
involving the entire vertebral column and the peripheral
joints, especially the knees. The examiner noted the veteran
was virtually confined to a wheelchair except for short
periods of walking using canes and requiring a long leg and
knee brace. The right knee could not extend more than 20
degrees nor flex more than 20 degrees from the neutral
position due to pain and muscle weakness. Iliopsoas,
quadriceps, and vastus lateralis muscle function on the right
was reduced to an estimated 40 percent of normal. There was
no evidence of sensory neuropathy or radiculopathy involving
the lower limbs. The veteran was unable to stand without the
use of canes. In conclusion, the examiner noted the veteran
had a history of a lateral meniscectomy of the right knee and
anterior cruciate ligament repair of the right knee with
severe degenerative osteoarthritis requiring a total knee
replacement. It was also noted that the veteran had
considerable disuse muscular atrophy of the pelvic girdle
musculature of the right lower limb.
In an August 1997 rating decision, the RO determined that a
30 percent evaluation was warranted for the veteran's
service-connected right knee disability, effective from April
30, 1997.
Upon VA examination dated in October 1997, it was noted the
veteran had a right knee brace. It was noted the veteran had
severe pain during movements of the knees unless she
supported herself on crutches. She was unable to perform any
active movements of the right knee. She could not extend the
right knee to zero degrees extension, even with passive
movements. She demonstrated severe pain during those
movements. The knees did not demonstrate any swelling. The
right knee measured two centimeters smaller than the left
knee. The examiner noted the veteran was severely crippled
with respect to the movements of the knees so that it was
impossible to examine and assess the exact numbers in flexion
and extension. A diagnosis of severe degenerative joint
disease of the knees with loss of active motion in the right
knee was noted. The examiner noted the veteran was severely
crippled and that she did drag her right foot. It was also
noted that she was unable to have any active motion in the
right lower extremity.
Upon VA examination dated in October 1999, the veteran
complained of constant pain and stiffness in the bilateral
knee joints. It was noted the veteran was mobile with a
scooter and wore a long leg brace on the right lower
extremity. In regard to the knees, the examiner noted no
evidence of heat, redness, swelling, effusion, or drainage.
A relevant diagnosis of degenerative joint disease of the
bilateral knees was noted.
A VA orthopedic examination dated in October 1999 reflects
that there was a tendency for either knee to give way when
walking. Upon physical examination, general tenderness was
noted in both knees, particularly over the patellofemoral
articulations, as well as the joint lines medially and
laterally. The right knee appeared to be somewhat larger
than the left, owing to bony enlargement along the tibial
borders, possibly related to some osteophyte formation. No
effusion was noted in either knee. There was no increased
warmth or patellar subluxation demonstrable. Definite
mediolateral laxity was demonstrable in the right knee.
Motions in both knees were painful. Range of motion in the
right knee was noted as zero degrees extension and 135
degrees flexion. A relevant diagnosis of degenerative
arthritis in both knees, severe on the right, was noted. The
examiner opined that the degenerative arthritis of the knees
was due to the progression of the meniscectomy and
arthrotomy. There was pain at the limits of motion and with
motion of the knees. In the right knee, the pain was
generally at the onset of about 50 percent of the available
motion (or 70 degrees) and continued until the motion was
complete.
Analysis
The veteran's right knee is rated pursuant to 38 C.F.R.
§ 4.71a, Diagnostic Code 5257, which provides that moderate
recurrent subluxation or lateral instability of the knee
warrants a 20 percent evaluation. Severe recurrent
subluxation or lateral instability of the knee warrants a 30
percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code
5257. A 30 percent evaluation is the maximum evaluation
allowed under this diagnostic code.
Limitation of motion of the knee is contemplated in
Diagnostic Codes 5260 and 5261. Diagnostic Code 5260
provides for a zero percent evaluation where flexion of the
leg is only limited to 60 degrees. Flexion limited to 45
degrees warrants a 10 percent evaluation. A 20 percent
evaluation is warranted for flexion limited to 30 degrees. A
30 percent evaluation is assigned where flexion is limited to
15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260.
Diagnostic Code 5261 provides for a zero percent evaluation
where extension of the leg is limited to five degrees. A 10
percent evaluation is warranted where extension is limited to
10 degrees. A 20 percent evaluation is warranted where
extension is limited to 15 degrees. Extension limited to 20
degrees warrants a 30 percent evaluation. A 40 percent
evaluation is warranted for extension limited to 30 degrees.
Extension limited to 45 degrees warrants a 50 percent
evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5261.
In regard to the period from February 14, 1990 to April 30,
1997, the medical evidence of record demonstrates no more
than moderate subluxation or lateral instability of the right
knee. In July 1990, a VA examiner noted no instability in
the knees and an April 1992 record noted only mild to
moderate degenerative changes of the knee. Additionally, a
September 1993 VA examination report noted moderate
degenerative changes with extension to 180 degrees and
flexion to 145 degrees. The Board concludes that this
evidence is indicative of no more than moderate recurrent
subluxation or lateral instability of the right knee.
With regard to the above, the Board also references
VAOPGCPREC 23-97 (O.G.C. Prec. 23-97). In that opinion, the
General Counsel stated that when a knee disorder is rated
under Diagnostic Code 5257, and a veteran also has limitation
of motion which at least meets the criteria for a zero
percent evaluation under Diagnostic Code 5260 or 5261,
separate evaluations may be assigned for arthritis with
limitation of motion and for instability. However, General
Counsel stated that if a veteran does not meet the criteria
for a zero percent rating under either Diagnostic Code 5260
or 5261, there is no additional disability for which a
separate rating for arthritis may be assigned. In the
present case, there is no evidence of limitation of motion
sufficient to warrant a zero percent evaluation under either
Diagnostic Code 5260 or 5261 for the period from February 14,
1990 to April 30, 1997; thus application of VAOPGCPREC 23-97
(O.G.C. Prec. 23-97) is not warranted. Therefore, for the
period from February 14, 1990 to April 30, 1997, an
evaluation in excess of 20 percent is not warranted for the
veteran's service-connected right knee disability.
In regard to the period from April 30, 1997, the medical
evidence of record clearly demonstrates severe degenerative
joint disease and lateral instability of the right knee.
However, a 30 percent evaluation is the highest rating
provided for under Diagnostic Code 5257. Additionally, the
October 1999 VA examination revealed zero degrees extension
and 135 degrees flexion. Thus, contemplation of VAOPGCPREC
23-97 is also not warranted for the period from April 30,
1997.
However, the Board recognizes that the evidence notes that
exact degrees of flexion and extension were sometimes noted
by the examiners as unable to be determined because of the
veteran's pain on motion. Additionally, there is x-ray
evidence of severe degenerative joint disease. In light of
that, the Board finds that the veteran is entitled to a
separate evaluation based on arthritis and limitation of
motion in the right knee under VAOGCPREC 9-98. Because the
pain is described as severe and elicited on full extension,
the Board finds that the evidence also demonstrates the
highest rating warranted for arthritis and painful motion in
the right knee, which is 10 percent.
III. Total Disability Evaluation Due to Service-Connected
Disabilities
As previously noted, disability evaluations are administered
under the VA schedule for Rating Disabilities (Schedule) that
is found in 38 C.F.R. § Part 4 and are designed to compensate
a veteran for the average impairment in earning capacity.
38 U.S.C.A. § 1155. Separate diagnostic codes identify the
various disabilities.
Total disability ratings for compensation may be assigned,
where the schedular rating is less than total, when the
veteran is unable to secure or follow a substantially gainful
occupation as a result of service-connected disabilities,
provided that if there is only one such disability, such
disability shall be rated as 60 percent or more and if there
are two or more disabilities, there shall be at least one
disability ratable at 40 percent or more and sufficient
additional disability to bring the combined rating to 70
percent or more. For the above purpose of one 60 percent
disability, or one 40 percent disability in combination, the
following will be considered as one disability: (1)
Disabilities of one or both upper extremities, or of one or
both lower extremities, including the bilateral factor, if
applicable, (2) disabilities resulting from common etiology
or a single accident, (3) disabilities affecting a single
body system, e.g. orthopedic, digestive, respiratory,
cardiovascular-renal, neuropsychiatric, (4) multiple injuries
incurred in action, or (5) multiple disabilities incurred as
a prisoner of war. See 38 C.F.R. § 4.16(a).
The regulation further provides that the existence or degree
of nonservice-connected disability or disabilities or
previous unemployment status will be disregarded where the
aforementioned percentage for the service-connected
disability renders the veteran unemployable. See 38 C.F.R.
§ 4.16(a). Further, rating boards shall submit to the
Director of Compensation and Pension Service, for
extraschedular consideration, all cases of veterans who are
unemployable by reason of service-connected disabilities, but
who fail to meet the percentage standards noted above. See
38 C.F.R. § 4.16(b).
In the present case, the assigned disability evaluations
related to the veteran's service-connected disabilities,
which stem from common etiology, clearly meet the percentage
requirements set forth in 38 C.F.R. § 4.16(a) in light of the
Board's determination herein that a 60 percent evaluation is
warranted for degenerative joint disease, L4-5, with right-
sided radiculopathy to the lower extremity. Therefore, what
remains to be determined is whether the veteran's service-
connected disabilities render her unemployable without regard
to advancing age. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a).
In October 1999, a VA examiner opined that the veteran could
not perform any work in a standing position because she could
only walk a few steps with the use of crutches or a walker.
He noted that for the most part, she remained in a seated
position largely because of the weakness of the right lower
extremity, as well as the aggravation of the low back and
right knee, and to some extent the left knee. The examiner
opined that the veteran could conceivably do some work in a
sitting position, but only for limited periods of time,
probably at most one to two hours in the course of a day.
This was further diminished by problems with her hands.
Overall, the examiner opined that the veteran was not capable
of engaging in any work effort. The examiner also noted that
the veteran last worked as a critical care nurse in 1980,
when she stopped working because of severe low back and knee
pain.
An additional October 1999 VA examiner also opined that due
to the severity of the bilateral knee condition, degenerative
arthritis, and cervical and lumbar disease, the most suitable
employment for the veteran would be sedentary duties. The
examiner further opined that based on the veteran's overall
medical condition, she would be severely impaired in her
ability to work.
Thus, although the examiners have noted additional
disabilities which are not service-connected, it appears from
the record that the veteran's service-connected disabilities
render her incapable of anything other than sedentary work
for one to two hours in the course of a day. Additionally,
the evidence indicates that the veteran's mobility is limited
to a motorized scooter, crutches, and a walker. The Board
concludes that this evidence as a whole supports the
conclusion that service-connected disabilities have rendered
the veteran essentially unemployable and her claim is
granted. See 38 C.F.R. § 4.16(a).
ORDER
A 60 percent evaluation is warranted for degenerative joint
disease, L4-5, with right-sided radiculopathy to the lower
extremity, subject to the controlling regulations governing
the payment of monetary benefits.
An evaluation in excess of 20 percent for residuals of a
status post meniscectomy and arthrotomy of the right knee for
the period from February 14, 1990 to April 30, 1997 is not
warranted.
An evaluation in excess of 30 percent for residuals of a
status post meniscectomy and arthrotomy of the right knee for
the period from April 30, 1997 is not warranted.
A 10 percent evaluation is warranted for arthritis due to
residuals of a status post meniscectomy and arthrotomy of the
right knee, subject to the controlling regulations governing
the payment of monetary benefits.
Entitlement to a total disability evaluation based upon
individual unemployability due to service-connected
disability is granted.
REMAND
In October 1997, the veteran sought entitlement to service
connection for an eye disorder, claimed as secondary to
medications taken for her service-connected conditions.
Treatment records dated in 1997 and 1998 reflect complaints
of dry eyes, blurry vision, and eye pain. A May 1997 medical
record reflects a diagnosis of Sjogren's syndrome with severe
dry eye. At her December 2000 hearing before a Member of the
Board, the veteran testified that a doctor had told her that
her eye condition was related to her arthritic condition. In
an April 2000 decision, the RO denied entitlement to service
connection for an eye condition on the basis that the claim
was not well grounded. The veteran has not been afforded a
VA examination for the purpose of determining whether the
claimed eye condition is related to her service-connected
disabilities and resulting medications or any other incident
of active service.
The Board notes that there has been a significant change in
the law during the pendency of this appeal. On November 9,
2000, the President signed into law the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000). Among other things, this law eliminates the concept
of a well-grounded claim, redefines the obligations of VA
with respect to the duty to assist, and supersedes the
decision of the United States Court of Appeals for Veterans
Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn
sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6,
2000) (per curiam order), which had held that VA cannot
assist in the development of a claim that is not well
grounded. This change in the law is applicable to all claims
filed on or after the date of enactment of the Veterans
Claims Assistance Act of 2000, or filed before the date of
enactment and not yet final as of that date. Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart
(a), 114 Stat. 2096, ___ (2000). See also Karnas v.
Derwinski, 1 Vet. App. 308 (1991).
Because of the change in the law brought about by the
Veterans Claims Assistance Act of 2000, a remand in this
issue is required for compliance with the notice and duty to
assist provisions contained in the new law. See Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4,
114 Stat. 2096, (2000) (to be codified as amended at 38
U.S.C. §§ 5102, 5103, 5103A, and 5107). In addition, because
the VARO has not yet considered whether any additional
notification or development action is required under the
Veterans Claims Assistance Act of 2000, it would be
potentially prejudicial to the appellant if the Board were to
proceed to issue a decision at this time. See Bernard v.
Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92
(July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)).
Thus for the aforementioned reasons, a remand of this issue
is required.
Additionally, the issue of entitlement to specially adapted
housing has not been reviewed by the RO in light of the
Board's decision herein. Accordingly, these issues are
REMANDED to the RO for the following development:
1. The RO must review the claims file and
ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied. For further guidance
on the processing of this case in light of
the changes in the law, the RO should
refer to VBA Fast Letter 00-87
(November 17, 2000), as well as any
pertinent formal or informal guidance that
is subsequently provided by the
Department, including, among others
things, final regulations and General
Counsel precedent opinions. Any binding
and pertinent court decisions that are
subsequently issued also should be
considered.
2. In regard to the issue of entitlement
to specially adapted housing, the RO is
requested to re-examine the issue in light
of the Board decision included herein. If
any additional development is deemed
necessary, it should be completed by the
RO.
3. If the benefits sought on appeal
remain denied, the veteran and her
representative, if any, should be provided
with a supplemental statement of the case
(SSOC). The SSOC must contain notice of
all relevant actions taken on the claims
for benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal. An appropriate
period of time should be allowed for
response.
Thereafter, the case should be returned to the Board for
further appellate consideration. The Board intimates no
opinion as to the ultimate outcome of this case. The veteran
need take no action unless otherwise notified.
The Board notes that the veteran has the right to submit
additional evidence and argument on the matter or matters the
Board has remanded to the regional office. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
John E. Ormond, Jr.
Member, Board of Veterans' Appeals